Kim (Migration)

[2023] AATA 438

Kim (Migration) [2023] AATA 438 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangrae Kim

REPRESENTATIVE:  Mr Chang Min Park (MARN: 0639865)

CASE NUMBER:  1923796

HOME AFFAIRS REFERENCE(S):          BCC2017/1859895

MEMBER:Terrence Baxter

DATE:7 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233(3) of Schedule 2 to the Regulations.

Statement made on 07 March 2023 at 9:34am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – farm products quality inspector – subject of approved position nomination – related nomination application refused – joint hearing of nomination and visa reviews – nomination refusal set aside – no weight given to unsubstantiated allegation made five years ago – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Farm Products Quality Inspector for L & H Express Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 24 August 2019 because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations which required that he be the subject of an approved nomination. The delegate found that the nomination of the nominator was refused on 26 July 2019 and that accordingly the applicant did not meet the requirements of cl 187.233(3) and did not meet the requirements of cl 187.233 as a whole.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 26 August 2019.

7. The applicant appeared before the Tribunal by video conference on 7 December 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the relevant nomination application. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by his registered migration agent Mr Chang Min Park. The representative attended the Tribunal hearing by video conference.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Section 375A certificate

12. During the review, the Department issued a certificate and notification under s 375A of the Migration Act 1958 (Cth) (the Act) on 14 November 2022 with respect to documents containing certain information. The certificate stated that the section of the Act applied because disclosure of the information would be contrary to the public interest. The Tribunal provided a copy of the certificate to the applicant.

13. The Tribunal has considered whether the information referred to in the certificate would be the reason, or part of the reason, for affirming the decision under review. The information is twofold:

    a.    The first is a note on the Department’s file that the applicant had been the sole owner and director of a labour hire company.

    b.    The second contains details of an allegation made in September 2017 that the applicant had worked in breach of his student visa and ‘arranges illegal work’.

14. The Tribunal provided the gist of the information to the applicant at the hearing. The Tribunal advised him that it did not regard the information referring to the applicant’s prior involvement in a labour hire company as being relevant to this application because the applicant had notified the Tribunal earlier in the hearing that he had been involved with a labour hire company in 2013.

15. Following the procedure specified in s 359AA of the Act, the Tribunal explained the possible relevance of the other information to the applicant. The applicant was offered an adjournment to respond to the information and he was allowed an adjournment.

16. At the resumption of the hearing, Mr Kim stated that the information may have referred to his employment of student visa holders. He said that, if the information referred to his working in breach of student visa conditions, the information was incorrect. He said that he had never previously been notified of the allegation or investigated by any officer of the Department regarding the allegation.

17. Having regard to the fact that the allegation was made over five years ago, that the allegation is unsubstantiated and that it appears to have not been investigated, the Tribunal does not regard the information to be relevant to the review application and the Tribunal has placed no weight on the information in reaching a decision in this matter. The Tribunal notified Mr Kim accordingly at the hearing.

    Nomination of a position

18. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

19. In addition, this criterion also requires that:

    ·     the person who will employ the applicant is the person who made the nomination;

    ·     the nomination has been approved and has not been subsequently withdrawn;

    ·     there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B of the Regulations); or it is reasonable to disregard any such information;

    ·     the position is still available to the applicant; and

    ·     the visa application was made no more than six months after the nomination of the position was approved.

20. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Farm Products Quality Inspector approved, with the applicant as nominee, on 25 May 2017. The nomination application was refused on 26 July 2019 and the nominator sought review of that decision with the Tribunal on 8 August 2019.

21. On 7 March 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

22. Therefore, cl 187.233(3) is met.

23. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    · cl 187.233(3) of Schedule 2 to the Regulations.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.